Same Sex Marriage & Your Will: 4 things you need to know

On 9 December 2017 the Marriage Act (Cth) was amended to legalise same sex marriage in Australia. It was expected the first same sex weddings in Australia would take place on 9 January 2018, however NSW and Victoria have already issued some waivers which allow marriages before that date.   As Helen Phelps, Lawyer with Snedden Hall & Gallop, points out: if you are planning a trip down the aisle, it is crucial that you review your estate plan and ensure it is up to date.

Here are 4 significant factors to consider if you are contemplating marriage:

1.    Existing Wills are automatically revoked by marriage

Every state and territory across Australia has legislation in place which will revoke an existing Will upon a marriage or a civil union unless that Will was made in express contemplation of that particular marriage or union. 

If you do not update your Will following your marriage or civil union, you will die ‘intestate’ (without a will).  If you die without a Will, your estate will be distributed in accordance with statutory provisions and may not necessarily reflect your wishes. 

Updating your Will following marriage allows you to ensure your spouse is provided for, along with other loved ones including but not limited to children, step-children and other family members or relatives.  You are also able to appoint your executor and set out other specific wishes you may have, for example relating to the care of children, care of pets, distribution of assets and funeral and burial/cremation wishes.

2.    Enduring powers of attorney  may be revoked by marriage or civil union

As with Wills, the ACT has legislation in place which may result in the revocation of a power of attorney if a person marries or enters a civil union.  Section 58 of the Powers of Attorney Act 2006 provides that an enduring power of attorney is sometimes revoked by marriage, civil union or civil partnership of the principal.  It is best to clarify your particular circumstances with your lawyer.

It is a common misbelief that a spouse can automatically act as your attorney in the event you lose capacity.  If you have lost capacity and do not have an effective enduring power of attorney your spouse will be required to seek appointment to the role.   Further, any person can seek this appointment and the appointed guardian may not necessarily be the person you would choose to act in this role.  You also lose the opportunity to provide specific directions or limitations in relation to your attorney’s exercise of their powers.

3.    Superannuation

Superannuation is a major asset for most Australians however it is one that does not form part of your estate. Superannuation is held by the trustees of your super fund on your behalf.  Following your death, superannuation is distributed in accordance with the rules of the trust. 

Previously there has been a significant gap between the treatment of married partners, partners in civil unions and those in de facto relationships.  For superannuation purposes, marriage provides automatic recognition of a married partner, whereas establishing a de facto relationship can require the production of significant proof of financial interdependence and cohabitation. 

In circumstances where the parties may have kept their relationship hidden, or the relationship was not acknowledged by the family of the deceased, the surviving partner will now be able to provide a marriage certificate as proof of a relationship rather than undergoing the onerous process of proving a relationship via the production of voluminous documents and financial records.

It is important for all adults to ensure a binding death benefit nomination is in place, otherwise the trustee has the discretion to decide what happens to your superannuation.  Not only should you create a binding death benefit nomination, you should ensure it is renewed every three years.  You may also need to review your binding death benefit nomination following marriage as, depending on the trust deed, it may be revoked by a significant change in circumstances, such as marriage. 

4.    What if I have already married my same sex partner in a foreign jurisdiction

Amendments to the Marriage Act 1961 (Cth) mean that foreign marriages are now recognised in Australia.  Couples who married overseas had their unions automatically recognised under Australian law on 9 December 2017.  The legislation does not specifically address the impact of this recognition on Wills or enduring powers of attorney.

If you had married overseas prior to 9 December 2017 and had created a Will or enduring power of attorney following your foreign marriage you should seek specific advice regarding the impact of this legislative change on your Will and enduring power of attorney.

Snedden Hall & Gallop Lawyers can assist you

For any couple contemplating marriage, the Wills & Estate team have expertise in all aspects of estate planning and can help you ensure your final wishes are respected. At Snedden Hall & Gallop, we have vast experience in ensuring that our clients are supported in the creation of their important personal documents including Wills and EPAs. In addition, we have a strong litigation team who can assist if your Will is challenged or if an attorney misuses their power.

Please contact us by phone on (02) 6285 8000 or by email.  

Helen Phelps Biography

You can find out more about Helen here.

Photo by Søren Astrup Jørgensen